CYIL vol. 11 (2020)
YLLI DAUTAJ CYIL 11 (2020) When signing the Convention, China understood that it was not exactly what it wanted, but that it constituted a consensus and a result of coordinated efforts of the global community. 84 Hence, its general comments in the fifty-sixth session in 2001 ( see above) should be given additional value apart from marking its reasons for signature. As has been stated, a “hitherto unperfected act such as a unilateral statement by a government official, which has not been made into an international agreement or undergone internal ratification procedures, may nonetheless indicate the firm policy of the state whose representative has made it”. 85 The overall data on China’s pre-2011 statements may be useful in determining the legal expectations of the global community at large. Prior to the FG Hemisphere case, the global community expected China to adopt a restrictive theory on immunity. After all, it was its own manifest intention to do so. Both the signing of the Convention and the law on the Central Bank Property Law demonstrates that China felt obliged by the former and put in place a clarification of the more controversial issue of central bank assets that was left sort of open in Article 21. 86 The Central Bank Property Law is not “a relaxation of the absolute doctrine” as pertained by some 87 , but rather the opposite; it is a cementation of the conservative element in Article 21 of the Convention. It seem clear that the Central Bank Property Law was intended to clarify some of the lingering uncertainty in the Convention vis-á-vis measures of constraint. 88 In particular, to emphasize that Article 21 should not be construed liberally if property is of mixed use. Thus, the fact of the matter is that the Central Bank Property Law demonstrates China’s initial sense of legal obligation not only to not defeat the object and purpose of convention, but to honor its specific provisions. 5. Concluding Remarks China’s signature to the UNCSI is yet another parade in transnational grandstanding. It is about time that the global legal community calls out its charade. The times of academic curtailing is over and the time for state responsibility has come. History will remember this watershed moment in building a transnational legal civilization. As independent observers of law and social processes, scholars have an important role to play in pointing out what is right from wrong. Embracing the restrictive theory of immunity through diplomatic channels, 84 See e.g. Yang, (n 15) 452 (“There was general agreement that the divergence of views made further efforts necessary. Not surprisingly, the General Assembly decided that the Sixth Committee Working Group should continue its work in 2000, ‘to consider the future form of, and outstanding substantive issues related to, the draft articles on jurisdictional immunities of States and their property’.”). 85 Reisman, (n 51) 740. 86 See e.g. Certain Iranian Assets ( Islamic Republic of Iran v. United States of America ), Judgment of 13 February 2019; WUERTH, Ingrid, ‘Immunity from Execution of Central Bank Assets’ in RUYS, Tom , ANGELET, Nicolas and FERRO, Luca (eds.), The Cambridge Handbook of Immunities and International Law (Cambridge: Cambridge University Press 2019); JANIG, Philipp and MANSOUR FALLAH, Sara, ‘Certain Iranian Assets: The Limits of Anti-Terrorism Measures in Light of State Immunity and Standards of Treatment’ (2016) 59 German Yearbook of International Law ; and Yang, (n 16) 410 (“Therefore it is little wonder that, in the practice of some states, special considerations apply to the immunity of foreign central banks. In these states the property of foreign central banks is accorded absolute or near absolute immunity from execution.”). 87 Shan & Wang, (n 7) 65. 88 See e.g. Certain Iranian Assets (n 85).
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